NEWMARKET COURT FILE NO.: CV-08-089735
DATE: 20141119
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Harpreet Dua and Nanak P. Singh, Plaintiffs/Moving Parties
AND:
Ontario College of Teachers, W. Douglas Wilson and Michael Salvatori, Defendants/Responding Parties
BEFORE: THE HON. MR. JUSTICE P.H. HOWDEN
COUNSEL:
Harpreet Dua and Nanak P. Singh, Self-represented
S. D’Souza, Counsel and T. Wilson (Student-at-Law), for the Defendants/Responding Parties
HEARD: By written submissions
COSTS ENDORSEMENT
AND AMENDED ENDORSEMENT OF SEPTEMBER 26, 2014
[1] On September 26, 2014, my endorsement on the plaintiffs’ motion to set aside a dismissal order of the Registrar on terms was released [2014 ONSC 5616]. Because the plaintiffs’ were granted an indulgence despite several years of “complete inattention and neglect” of this action, I ordered that the defendants’ costs of the motion should be paid by the plaintiffs. I have received the cost submissions from both sides in writing as directed. The defendants claim fees for preparation of the motion, service, attendance on the return date and preparation of the draft bill in the sum of $6,663.00 plus HST. With disbursements, they claim a total of $8,105.05.
[2] The plaintiffs’ submission contained what was basically a diatribe against the justice system, and indicated their judgment that much of the defendants’ case was built on lies, irrelevant matters, and the delay in reclaiming the file after four years’ stasis. Yet this was a motion in which they were successful after one of the lengthier delays in the reported cases. They had little or nothing say as to the quantum of costs based on the defendants’ outline, as they were invited to do.
[3] In my view, this motion did not involve a difficult or complex subject. The claim for costs either represents severe over- lawyering, or is simply unreasonable in the time claimed. Yes, the defendants’ counsel had to provide the record but the motion record was little more than copies of correspondence from their file and the cases produced by the defendants’ counsel failed to turn up three which were not in their clients’ interest to raise but should have been if the authorities were to be complete. It was the plaintiffs who, as I recall, referred me to the Scaini, Askaryar and Bains cases which were highly relevant. The defendants claim nine hours of counsel’s time ($225/hour) and 39.3 hours of law student time ($60/hour), making a total of $6,633 in preparation. The motion took one-half day to argue or three hours. Fees for preparation and submissions are claimed at six hours at $225/hour. In addition, this was a file on which the defendants saw no reason to bring their own motion for delay which they would reasonably have done if they were truly prejudiced.
[4] The basic aim in fixing costs is, as Armstrong J.A. described in Boucher v. Public Accountants Council (Ontario)(2004), 2004 14579 (ON CA), 71 O.R. (3d) 291:
Overall, as this court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.
[5] I would allow four hours for the day of the hearing including final review. For preparation of the motion, the defendants are not entitled to time learning the law on a subject; their claim is limited to a reasonable amount for the value of work actually required and done on this motion including preparing the record, research, and preparing the factum and supplementary record. Legitimate expectation of the costs to be faced by the losing parties are also taken into account within the factors considered by me under rule 57.01.Using the partial indemnity approach, I will allow fees of $1,200 for preparation and research and counsel fee for the hearing of $850, making a total of $2,050. With disbursements, the total costs properly claimable in the circumstances here on this motion are $2,409.61 plus HST. I see no reason for the claims of $307.25 for copies and $110.76 for process service and I have reduced them by $150.
[6] In view of the fact that I have not completed my order until now, the original terms of setting aside the dismissal order and reinstating the action shall be amended to the following:
the plaintiffs shall have 20 days from the date of release of this endorsement to deliver their affidavit of documents;
the plaintiffs shall serve and file the trial record by January 25, 2015;
the plaintiffs shall see that this action is listed for the May 2015 trial sittings for trial;
costs of this motion to set aside the Registrar’s order of dismissal are fixed in the sum of $2,409.61 plus HST of $313.25, or $2,722.86 in total, to be paid by the plaintiffs by December 31, 2014.
[7] The terms set out in the original endorsement, para. 36, are replaced by the above. Leave is granted to defendants’ counsel to submit the order for signature without approval by the plaintiffs and counsel shall do so within 10 days of release of this decision.
HOWDEN J.
Date: November 19, 2014